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International Law and the Founding Era

In an Atlantic series on supposed “constitutional myths,” former Washington Post reporter Garrett Epps has been dispensing his opinions on such matters as why the Supreme Court misunderstood the First Amendment most terribly in the Citizens United case, and why the shooting spree of Tucson madman Jared Loughner proves the need for a Second Amendment that accommodates gun control. The series as a whole is marred by a tone of misplaced condescension in which Epps lectures his opponents as though they were all know-nothing newcomers to the field of constitutional debate.

He’s at it again with a new post on international law and the Constitution. Epps might have been on solid ground had he confined himself to criticizing a badly wrongheaded ballot measure enacted by Oklahoma voters last fall that purports to forbid Oklahoma judges from considering international law or foreign national law in their decisions. As almost any libertarian or Federalist-Society-leaning constitutional scholar could have warned those voters – and as manydid at the time – measures of that sort are not only unwise as policy but also rest on a seeming misunderstanding of the many ways in which American courts since the founding have found it appropriate and legitimate to handle some disputes (to take an obvious example, disputes arising in part abroad) under the “law of nations” or the domestic law of a particular foreign country. Justice Antonin Scalia, surely the highest-profile critic of the overuse of international law concepts by the Supreme Court, has been equally outspoken in acknowledging the many uncontroversial, legitimate, and long-established uses of foreign law.

It’s true, as [Epps] says, that founding-era Americans had an attachment to international law (what they called the law of nations) and built it into the Constitution in various respects. … But none of this history has anything to do with the modern purpose to which Professor Epps wants to put it. … [While] the founders had an appreciation for international law, they did not constitutionalize it – that is, they left it under the control of Congress, rather than incorporating it directly into constitutional law. … [As] this book describes, using international (or foreign) law to expand domestic rights has (with minor exceptions) roots only in the latter half of the twentieth century. Thus Professor Epps’ critique of conservatives on this point doesn’t really work – acknowledging the Constitution’s original relationship with international law doesn’t require one to accept where the modern Supreme Court has been trying to take it.

If one is going to pose as the scourge of know-nothingism, one ought not to engage in it oneself.